THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH …...been discussed in cases: Tootsie Persaud Ltd....

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SAINT VINCENT AND THE GRENADINES

HIGH COURT CLAIM NO 48 OF 2009

BETWEEN

THE INCORPORATED TRUSTESS OF THE SEVENTH DAY ADVENTIST CHURCH Applicant

V

DELORES JORDAN Respondent

APPEARANCES Mr Bertram Commissiong ac and Ms Mira Commissiong for the Applicant Ms Zhinga Horne-Edwards for the Respondent

2011 May 9th 10th 24th July 21 st

DECISION

BACKGROUND

[1] JOSEPH Monica J On 1st September 2009 the Applicant filed an application seeking

declaration of possessory title to a parcel of land 3715 sq ft situate at Chateaubelair (the

disputed property) That application was made in accordance with section 3 of the

Possessory Titles Act 2004 (No 38 of 2004) (now Cap 238) (the Act) The application was

supported by affidavits of Yvonne Jordan Norma Marshall Doreen Mason Selwyn Jones

(who gave oral testimony) and Roseclair Roberts (deceased) filed in accordance with

section 5 of the Act

[2] There was publication of the application in the High Court building Magistrates Court

building and newspapers as required by section 7 of the Act The application was

opposed by respondent Delores Jordan (Administratrix of the estate of Leon Jordan

deceased) who filed an entry of appearance on 7th October 2009

[3] In accordance with section 7 of the Act the Respondent filed an opposing claim on 2nd

November 2009 Affidavits in support of the opposing claim were filed on 9th March 2009

by Delores Jordan Wonetha Jordan Andrew Cummings (who gave oral testimony) and

Savillie Cummings (deceased)

THE DISPUTED LAND

[4J During cross examination of Andrew Cummings it was suggested that the Respondent

was claiming a different parcel of land or a parcel of land differently described I accept

the disputed property (3715 sq ft) at Chateaubelair as published on the North by an

allotment road on the North-east by an existing road and West by a road leading to

Leeward Highway on the South by lot Number 20 on Plan D62

[5] On this property stands a building which is occupied by the Seventh Day Adventist Church

As I understand Selwyn Jones an elder of the Church the local community Church has

certain responsibilities but when property is acquired by the church it is owned by the

Incorporated Trustees of the Seventh Day Adventist Church in St Vincent (Applicant)

WRITTEN SUBMISSIONSmiddot 30th June 2011

Documents Related to the Disputed Land

[6] The under-mentioned documents were put in evidence by the Respondent

1 A statutory declaration No 31912000 filed on 2nd November 2009 - Leon Jordan

declared that for the past forty-two years he had been in possession of the

disputed land from the death of his sister Rosa Jordan the owner of the land who

died on 29th April 1956 Rosa Jordan is Leons aunt

(2) Letters of Administration No 2032002 of 29th December 2002 granted to Delores

Jordan Daughter and Administratrix in the estate of Leon Jordan

2

bull (3) Suit No 1842007 - Notice of application Delores Jordan (Administratrix of the

estate of Leon Jordan deceased) against The Seventh Day Adventist Church and

Norma Marshall filed on 21 st May 2009

(4) Chateaubelair Town Board receipts for town rates for 1998 1999 and 2000 in the

name of Lucy Jordan 2001 to 2009 in the name of Leon Jordan

(5) Property Information Report Property name is Leon Jordan from 1995 to 2006

(6) Central Water Sewerage Authority receipt in the name of Florence Jordan clo

Seventh Day Adventist Church - billing period April-May 2005 periods in 2009

(7) Property tax bills of Inland Revenue Department Kingstown for tax years 23rd

June 2004 and 3rd July 2006 in name of Leon Jordan clo Florence Jordan Owner

shown as Leon Jordan

CASE FOR APPLICANT

[7] Lucy Jordan accepted as owner of the disputed property died in 1956 On her death

Carmen Cummings (Cummings) became caretaker of the disputed property In 1977 the

Applicant through Norma Marshall (Marshall) sought permission of Cummings to renovate

and occupy the disputed property

[8] Improvements were made to the disputed property by members of the Churchs

29thcongregation Cummings died on October 1997 The Applicant continued in

occupation to the present date

[9] With the exception of claim no 184 of 2007 by Delores Jordan which was dismissed with

costs awarded to the Applicant the Applicant has been in exclusive and undisturbed

possession of the property for the statutory period of twelve years

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CASE FOR RESPONDENT

[10) The Respondent Delores Jordan is the daughter and administrator of the estate of Leon

Jordan deceased who made a statutory declaration for the disputed property on 17th

September 1998 Letters of Administration in the estate of Leon Jordan were granted

The disputed property is included in the estate of Leon Jordan

[11) The Respondent and members of her family have been paying the taxes for the disputed

property since 1998 first in the name of Lucy Jordan and then from 2001 in the name of

Leon Jordan

[12] Both sides have admitted that the disputed property was owned by Lucy Jordan although a

paper title was not produced It was also admitted that Lucy Jordan placed Cummings

(referred to by witnesses as Ms Carms) in charge of the disputed property After Lucy

Jordans death Cummings permitted a number of persons to occupy the disputed

property the last being Marshall on behalf of the Applicant about 1977

[13] About 1977 Marshall acting for and on behalf of the Applicant asked and obtained

Cummings permission to use the disputed property to hold church services The

Applicant is in occupation of the disputed property to date

[14] According to Leon Jordans statutory declaration at the time of its making in 1998 he had

been in possession of the disputed property for 42 years through Cummings his agent

Forty-two years back from 1998 would be 1956 the year that Lucy Jordan died

[15] The Applicant claims to have begun to occupy the disputed property as owner from 1997

when Cummings died Up to the time of her death the Applicant considered Cummings to

be the person in control of the disputed property

4

t LEGAL SUBMISSSIONS

[16] Learned Counsel for the Applicant submitted The Church claims title by adverse

possession pursuant to section 2 of the Possessory Title Act Delores Jordan one of the

children of Leon Jordan and administrator of his estate has opposed the grant of title to

the church on the grounds Lucy Jordan who was acknowledged to be the owner of the

property but without a paper title had told Cummings that the property should go to Leon

Jordan who is described by his descendants as his aunt and by Leon Jordan in a solemn

declaration as his sister

[17] Cummings never did anything to pass the property to Leon Jordan but instead in 1976 put

the Church in possession as a place of worship and the Church has never paid any rent to

her or anyone else

[18] Marshall in two affidavits detailed how the Church came to be in possession and the

Churchs reaction to defend its possession Wonetha Jordan deposed for ten years her

family has been objecting to the Churchs occupation of the disputed property Similar

averment by Delores Jordan both ignoring that the Church had been in quiet and

undisturbed possession for 24 years prior to these protests and the legal effect of that

occupation

[19] The evidence of Saville Cummings and Andrew Cummings attempts to show that Leon

Jordan was the owner without paper up to 3rd October 2000 when two years later Leon

Jordans statutory declaration of continuous possession of the disputed property that was

made on 17th September 1998 was registered That document argued Learned Counsel

is self-serving and can avail the Respondent nothing

[20] The declaration that Lucy Jordan was his sister cannot be believed as under crossshy

examination Worentha Jordan said that Leon Jordan had told her that Lucy Jordan was his

aunt Learned Counsel invited the court to find that the evidence of the Jordan is

unbelievable Inconsistencies make the evidence for the Respondent unreliable and

should be rejected by the court

5

bull [21J Instances of inconsistencies given even though they were a family of ten living in a two

bedroom house within a stones throw of the disputed property and knowing that the

property belonged to their father they did not ask Cummings to put the Church out of the

property so they can move there Further that Cummings was to collect rent from the

Church to help alleviate the poverty they said they were experiencing Why if they were so

sure that the property belonged to the family did they not seek to interfere with the

Churchs possession until after the death of Cummings and the making of the most

questionable declaration of title

[22J There are curious aspects of Robert Andrew Cummings affidavit as well If it was

considered imprudent by him to give the property to Leon Jordan because he was a

drunkard and would sell it to get drinking money How did it become prudent to make the

declaration of title purporting to give him the right to sell after the death of Cummings

Surely a proper legal way could have been designed (by assignment) to give the

property to Delores Jordan who described herself as their fathers right hand for the

benefit of the family

[23] Whatever may have been her arrangement with Lucy Jordan if at all there was one

Cummings being a truly Christian lady considered it proper to hand the property over to the

Applicant to carry on and further the service of the Lord

[24] Learned Counsels submission was that the Applicants evidence remains believable and

uncontradicted and should be accepted by the court If accepted does the possession of

the Claimant entitle them to a declaration under the Act The quality of possession that

would entitle a possessor (a trespasser or one put into possession as in this case) has

been discussed in cases Tootsie Persaud Ltd v Andrew James Investment Ltd and

Others CCJ App No CV 1 of 2007 Civ App No 72 of 2004 and JA Pye (Oxford)

Ltd and Others v Graham and Anor (HL) 2002 UKHL Desmond Vincent Warner and

Anor v Anastaina Bianca Thomas and Others

[25] Dicta in Pye and Tootsie judgments make it clear that a person in exclusive possession

with the intention to possess as owner who offers to purchase does not take away from the

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quality of his possession In this case the fact that the Church offered to purchase does

not make any the less its intention

[26] Counsel for the Respondent submitted It was admitted by both sides the disputed

property was owned by Lucy Jordan although a paper title was never produced that Lucy

Jordan had placed Cummings in charge of the disputed property Cummings had

permitted a number of persons to occupy it the last being Marshall on behalf of the

Applicants about 1977 To date the Church occupies the disputed property

(27J Leon Jordans statutory declaration states that at the time of making it in 1998 he had


Forty-two years back from 1998 would be 1956 the year Lucy Jordan died

[28] The Applicants claim to have begun to occupy the disputed property as owner in 1997

according to Marshall when Cummings died Up to the time of her death the Applicant

considered Cummings to be the person in control of the disputed property

[29] Counsels submission was that the Applicant is required to prove factual possession

accompanied by intention to possess as owner for a continuous period of twelve years or

more before the filing of an application for adeclaration of possessory title

[30] Counsel argued that the Applicants case would crystallize on 28th October 2009 twelve

years after Cummings death Having flied their application on 1st September 2009 the

Applicant is approximately two months short of the qualifying period for adverse

possession and their application must fail Counsel cited the Act ftcase and Powell v

McFarlane (1977) 38 PT 452

[31] Counsel submitted that Pastor Works who made enquiries about purchasing the disputed

property had ostensible authority of the Applicant and that act impacted on the Applicants

intention

7

bull

FACTS THE LAW APLLlED

Factual Possessionmiddot Occupation

[32] There is no doubt that the Applicant occupied the disputed property from 1977 to the

present time The question to be determined is in what capacity was that occupation

enjoyed Lucy Jordan lived with her great-nephew George Smith on the disputed

property until she died in 1956 intestate From 1956 after Lucy Jordans death

Cummings took over Lucy Jordans business and was in charge of the disputed property

[33] She rented the disputed property to a number of persons one being Hilma Hadaway the

mother of Roseclair Roberts nee Robinson who vacated the property in 1965 According

to Roberts her mother who paid rent to Cummings told her that the property belonged to

Lucy Jordan Tile property remained unoccupied for a number of years and became

dilapidated

[34] Following a crusade in 1976 Marshall became a member of the Seventh Day Adventist

faith She was Town Clerk with responsibility for ensuring that the town was kept clean

She noticed that the property was vacant the wall building dilapidated without windows

doors and floor She sought permission of Cummings for the Applicant to use the

property informing her that the church would renovate the building and she readily

agreed

[35] Members of the congregation collected stones from the river to build the foundation for the

new building In her capacity as Town Clerk Marshall arranged for the workers who

cleaned the drains to put sand collected from the drains and other suitable material

collected from the streets onto the property to build up the land Marshalls husband a

mason cast the floor of the building and Brother Godwyn Harry a carpenter did the

woodwork

[36] In the first quarter of 1977 the congregation occupied the building as a place of worship

In 1978 and 1993 the church members made additions to the building on the property

Marshall deposed that no-one made any objections to those additions From whom did

8

bull she expect objections People in the town were aware that Cummings was in charge of

the building as she was the one who rented it to anumber of persons

[37J Would the small community of Chateaubelair not be aware that the Applicant through

Marshall was given permission by Cummings to occupy the property I conclude that the

town people would be so aware from a reading of affidavit of Roseclair Roberts

I deny that Leon Jordan owned the property1say so because if he did own it he would never have allowed the Seventh Day Adventist Church to occupy the property let alone do all the work they have done to the building He cannot say that he did not know for Chateaubelair is a really small place everyone knows each other and he would have been told of all that the Church was doing on the property

[38] Additionally members of the congregation collected stones from the river in Chateaubelair

and helped in the renovation of the building on the disputed property So the community of

Chateaubelair would have been well aware of what was taking place

[39] Pastor Howell asked Cummings to sell the property to the Applicant Her reply was that

Lucy Jordans brother who was in the United States was in charge of the property

Cummings promised to write the brother and did so but received no reply

[40] A question to be answered Did the payment of taxes and connection of water to the

disputed property change the character of the use of the disputed land

Payment of Taxes

[41 J Marshall gave differing versions regarding the payment of taxes and stated that the given

versions may be believed She stated there were arrears of taxes from 1976 to 2001

which the Applicant paid off She also stated she did not pay any arrears after Cummings

death (1997) She further said she gave money yearly to Cummings from the Applicant to

pay the taxes from 1985 to the date of her death Further she said Pastor Works paid

taxes for 1998 and 1999

9

[42] This is her affidavit evidence

After we had been on the property for about 20 years we were asked by Ms Cummings to pay the land taxes for it and we did so The land taxes were arrears from 1976 to 2001 and we paid it off When we went to pay the land taxes for 2002 we were told that other persons had been paying land taxes for the property We continued to pay the land taxes even so

[43J In cross examination she stated

(applicant) paid taxes all the time not from inception but after a while Ms Cummings told IJS to pay tax so we would carry the money to her and she would pay the tax I would take the money to Ms Cummings every year From around eighties I personally would take the money to Ms Cummings until she died From 1985 to her death I would take money

[44] In re examination she stated

During (Cummings) time she told us to pay tax and then we gave money to her We paid no arrears after her death Before it was five dollars we used to pay a year But then when we ask her to pay we paid up to 1997 there was no arrearsWhen we went to pay tax Gemma Wyers said she not ready to take taxes yet We went twice Third time she said somebody paid tax already

When we went Pastor Works went to town and paid tax for two years 1998 and 1999 Taxes could be paid in Kingstown and Chateaubelair If you pay in Kingstown it isnt credited to me in Chateaubelair Leon Jordan name was there not Ms Lucy

[45] I accept that when permission was given to the Applicant to renovate and use the building

as a place of worship there was no arrangement for payment of money That situation

changed after the Applicant had been in occupation for many years when Cummings

asked the Applicant to pay the tax and to take the money for the tax to her for payment

The tax money was taken to Cummings on ayearly basis by Marshall

[46] Why did Cummings request the Applicant to take the money to her when she could have

requested the Applicant to pay the taxes direct to the property tax office I conclude from

that new arrangement that Cummings was ensuring remuneration for use of the disputed

property to take the form of payment of tax with payment to be made through her That

method ensured tllat tax was paid it was paid through her she did not keep any money

What she collected she paid out It is common ground that Cummings was an honest

10

bull

Christian lady The payment of tax through her is equivalent to paying her rental for the

disputed property as agent for the owner

[47] By complying with Cummings request in furtherance of the permission she had granted to

them the Applicant acknowledged a superior interest in the disputed land held by Lucy

Jordan whose affairs Cummings was handling As I have held that payment of tax was

equivalent to paying rental it follows that possession of the disputed land by the Applicant

cannot be adverse

Water connection

[48] The manner in which Marshall made the arrangement for water connection to the disputed

property is enlightening In cross-examination Marshall stated

Water wasnt always connected to the property Water was connected to the property after Cummings died Cant remember rightly when

I applied personally for the water because I had preschool there so I applied for the water I applied on behalf of the Church I had to get a bill that we are there paying the rent not the rent the taxes We used to give money to Cummings and she would pay the tax I had to get a bill from the taxes sorry a receipt so I went at Income Tax office to pay tax but when we went searching Ms Lucys name was not there The then Town Clerk had taken off Ms Lucys name and put on Leon Jordan name

Then I saw a Florence Jordan and Leon Jordan name there on tax list so I paid the water bill in Florence Jordan on behalf of the Church That is how we keep water bill That is how I got water connected to property in the name of Florence Jordan1know that Leon Jordans wifes name is Florence People have same name

[49] When reminded of 15th April 2010 affidavit paragraph 3 she stated

After we saw deed we know her name was Rosa Jordan Just remember At time I connected water I didnt know that Florence Jordan was wife of Leon Jordan I thought it was a namesake like two persons having same name Thought it was When I connected water in Florence Jordan I did not know that she was Leon Jordans wife When I connected water Leon Jordan was not alive His name was entered on tax list after he died I had to fill out application I had to put name of owner I put Florence Jordan name not knowing it was Leon Jordans wife name

11

bull [50] Marshall suggested that it was coincidence that she used the name Florence Jordan

Also that she put Florence Jordan name on the document not knowing it was Leon

Jordans wife name Why did she not use the name Mary John or Joan Smith I do not

believe her She also said Kinship well known in village In answer to a question

whether Leon Jordan was related to Lucy Jordan she replied he was not as if he was I

would have known because I am affiliated with everybody

[51J It is unbelievable when Marshall said that she did not know Florence Jordan was Leon

Jordans wife She was able to give other details That Lucy Jordans father was an

Adams but he and Lucys mother never married Lucy used the surnames Jordan and

Adams interachangeably and her affidavit While Cummings and Leon Jordan were still

alive Delores Jordan her mother Florence Jordan and her brother Trevor Jordan

worshipped at the Applicants church in Chateaubelair She described where the Jordan

family lived in relation to where she then was (in Court) and indicated Chinatown

[52] I think she desired to place Florence Jordan as far away from Leon Jordan as Leon Jordan

was claiming possession of the disputed land through statutory declaration The fact is

she was not keen to link Florence Jordan to Leon Jordan who swore a statutory

declaration that Cummings was agent for the disputed land for the Jordans (Leon)

CESSATION OF PERMISSION - RUNNING OF TIME

[53] Did occupation of the property with Cummings permission continue indefinitely or did it

cease If it did cease what date did that cessation take place There is no evidence that

permission to occupy the disputed land was confirmed or extended after Cummings death

I think the permission to occupy the disputed property ceased with Cummings death in

1997

[54] Did occupying the disputed land with permission prevent time running against the owner

(whoever the owner might be) in favour of the Applicant Time can only run against the

owner of land where there is an adverse possessor who can claim factual possession of

the land as against the owner

12

bull

[55] A person who occupies land with the permission of the owner or permission of the person

in charge of property cannot claim to be an adverse possessor The Applicant having

acknowledged that from 1977 they occupied the disputed property with the permission of

Cummings the person in charge of the property cannot claim to have been in adverse

possession I find that time did not run against the owner

[56J The grant of permission by Cummings to occupy the disputed land ceased to be operative

from Cummings death on 29th October 1997 Marshalls affidavit evidence

The applicant began to occupy the land as owner in 1997 when Carmen Cummings died and George Smith indicated that if Lucy had wanted him to have the land she would have made a will and as a result he thought the applicant should have the land No other member of Lucy Jordans family came forward to clam the land

[57] Halsburys Laws of England 4th Edition Reissue Volume 28 paragraph 977 reads

What constitutes adverse possession is a question of fact and degree and depends on all the circumstances of each case in particular the nature of the land and the manner in which land of that nature is continually usedHowever for the claimants possession of the land to be adverse so as to start time running against the owner the factual possession should be sufficiently exclusive and the claimant should have intended to take possession Where the occupiers possession of the land is by permission of the owner that possession cannot be adverse

REQUISITE INTENTION Purchase of property

[58] The requisite intention is the intent to possess the disputed land evidenced by factual

possession and the full use of the land in the same way that an owner would The

applicants intention to hold the property as adverse possessor surfaced with Cummings

death on 29th October 1997 That intention was evidenced in Marshalls Supplemental

Affidavit of 15th April 2010 that the Applicant began to occupy the land as owner in 1997

when Cummings died I find that the Applicant had the necessary intention to possess

[59] In Tootsie Persaud case the Court said

Court of Appeal was correct in holding that the requisite intention to possess is present when the claimant in factual possession of the land intends to make full use of it in the wayan owner would

13

bull

[60] In Powell v McFarlane Slade J defined the animus possidendi as

The intention in ones own name and on ones own behalf to exclude the world at large including the owner with the paper title in so far as is reasonably practicable and so far as the processes of the law will allow

Purchase of property

[61] Marshalls affidavit filed on 1st September 2009

We were always trying to purchase the property and asked Cummings to get in touch with the person in the USA who was supposed to have inherit it She did write as we requested On several occasions I personally went together with 2 of the senior members of the church and pastors in our district to Cummings to enquire if she had any reply to her letters but she said that she never did

[62] I find that the Church was interested in purchasing the disputed property and took the risk

of continued renovation and occupation in the hope that it would obtain ownership if not

by purchase eventually by adverse possession

[63] The intention to purchase hovered over the intention to possess required of an adverse

possessor which later came to the fore on 30th October 1997(after Cummings death)

The desire to purchase the disputed property did not lessen the Applicants intention to

possess Purchasing the disputed property did not materialize

[64] In JA Pye (Oxford) Ltd and Others v Graham and another (HL)(2002) UKHL 30 Lord

Browne-Wilkinson in commenting on squatters giving evidence that if they had been asked

by the paper owner to pay for their occupation of the disputed land or take a lease they

would have been prepared to do so Lord Browne-Wilkinson referred at para 46 to what

Lord Diplock stated in Ocean Estates v Pinder (1969) AC1924 that an admission of this

kind which any candid squatter hoping in due course to acquire a possessory title would be

almost bound to make did not indicate an absence of an intention to possess

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Adverse Possession

[65] The Applicant as adverse possessor of the disputed land can succeed in their application

for possessory title only if they have been in exclusive possession for twelve years with

the animus possedendi ie intention to possess the disputed land

[66] Section 2 of the Act defines adverse possession to mean factual possession of an

exclusive and undisturbed nature of a piece or parcel of land in Saint Vincent and the

Grenadines for a continuous period of 12 years or more accompanied by the requisite

intention to possess the said land as owner thereof

[67] The statutory period of twelve years possession by the Applicant runs from 30th October

1997 to 29th October 2009 The Applicants application for a declaration of possessory title

was filed on 1st September 2009 This is fifty-nine days short of the twelve years required

for adverse possession of land The Applicant has not been in adverse possession of the

property for the statutory twelve years

DISTURBANCE

[68] The notices to quit sent to the Applicants by Solicitor for Florence Jordan are of no legal

effect Taking action by written notification to a person in possession of land that he is to

give up possession is not sufficient to take over possession from the possessor In Mount

Carmel Investments v Peter Thurlow Ltd (1988) 3 AER 129 at 133 (Court of Appeal)

Nicholls LJ had this to say

middotWe do not accept that in a case where one person is in possession of property and another is not the mere sending and receipt of a letter by which delivery up of possession is demanded can have the effect in law for limitation purposes that the recipient of the letter ceases to be in possession and the sender of the letter acquires possession

[69] Sir Vincent Floissac in Civil Appeal 13 of 1944 Florence Louise Belfon v Lester

McIntosh

The respondents extra-judicial protests objections and demands do not in law constitute acts of ownership (ie acts which evince an intention to assert ownership) or acts of possession (Le acts which evince an intention to assume

15

retain or regain possession) are acts which legally interrupt disturb or otherwise affect the quality of adverse possession

SUIT NO 184 OF 2007

[70] The commencement of a lawsuit by the owner or person acting for the owner against the

person occupying land over the right of ownership and possession of the land is one way

to interrupt continuous possession The suit interrupts the continuity of possession If the

owner abandons or settles a suit or if a court dismisses it the continuity of possession is

not affected Disturbance of the churchs possession must be by process of law What is

the legal effect of proceedings in suit 184 of 2007 instituted against the Applicant (church

and Marshall) by the Respondent (Delores Jordan Administrator)

[71] A notice of application filed on 21 st May 2007 sought an injunction against the Applicants in

respect of the property on grounds deceased (Leon Jordan) owned the property by virtue

of a statutory declaration No 3191 of 2000 that the applicants have refused to vacate the

property and have begun physical works on the property despite the Respondents

requests to stop any further construction The Respondent has instructed a solicitor to

prepare documents to apply for a declaration of possessory title under the Act However

a possessory title application was made by the applicant as Trustees of the Church and a

claim in opposition to that application was filed by Delores Jordan as Administrator of the

estate of Leon Jordan on 2nd November 2009

[72] The filing of the suit on 21 st May 2007 by Delores Jordan in the estate against the

Applicant over possession of the land interrupted the continuous possession by the

Applicant In her affidavit Delores Jordan deposed that the suit wrongly referred to the

Applicant as The Seventh Day Adventist Church instead of The Incorporated Trustees of

the Seventh Day Adventist Church and at the hearing the wrong heading was struck out

and the matter was adjourned

[73] Upon realizing that the Applicant was enclosing the property and not erecting a structure

the application for injunction was discontinued I find there was discontinuance of the

interruption of continuous possession

16

bull

[74] No discontinuance date was given but I think that is of no consequence in this

circumstance as the running of time against the applicants was not affected How do I

rationalize this When the suit was filed the physical occupation by the Applicant

continued but their intention to possess the property was disturbed and suspended

pending the determination of the suit

[75] The discontinuance of the suit revived the intention and intention and possession by the

Applicant continued as if there had been no disturbance The fact that the Respondent

mentioned that it was her intention to apply for a possessory title takes the matter no

further It is not the intention of the owner or the person acting for the owner that matters

but the successful taking by the person of judicial action within the statutory period

[76] Perry v Clissold (1907) AC 73 at p 79 (Privy Council) Lord Macnaghten stated

It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the prOVisions of the Statute of Limitations applicable to the case his right is forever extinguished and the possessory owner acquires an absolute title

[77] The relevant sections of The Limitation Act (Cap 129) are Sections 17 and 19

17 (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him

19 at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished

WHO HAS THE BETTER RIGHT

[78] Salmond on Jurisprudence Eleventh Edition observes at page 345

In English law possession is a good title of right against anyone who cannot show a better A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself

17

~

[79] In this case the Applicant is adverse possessor of the disputed property Lucy Jordan

with no documentary title but with possessory title accepted by all parties as possessory

owner dies Cummings recognized by the parties as caretaker of Lucy Jordans property

permitted the Applicant to occupy the disputed property Cummings died in 1997 and

permission ceased to be operative

[SO] From 1997 the wrongful possessor that is the adverse possessor the Applicant has

rights against the world except earlier possessors and except the true owner While time

is running in favour of the Applicant the Applicant can exercise their rights against

everyone except someone with a superior interest Le a possessory interest

WHO IS APERSON WITH THAT SUPERIOR INTEREST

[S1] On Cummings death in 1997 when time began to run in favour of the Applicant the

persons with a superior interest (possessory interest) were the heirs of Lucy Jordan They

had the right to possession of the disputed land acting throllgh Cummings caretaker for

the land

[82J The heirs of Lucy Jordan with a right to possession of the disputed land can assert that

right as against the Applicant the person wrongfully in possession and prevent the

Applicants wrongful possession ripening into prescriptive title by operation of the

Limitation Act The Applicant has not obtained twelve years adverse possession (October

1997 to September 2009

WHO ARE THE HEIRS OF LUCY JORDAN

[83] Lucy Jordan is regarded by the parties to have been the possessory owner of the disputed

land There is evidence from Marshall that she put Florence Jordans name as owner on a

document when she was applying for water connection to the disputed property She

sought to explain that by saying that it was coincidence and that people sometimes have

the same name I have indicated that I do not believe her explanation I believe at the

time she inserted Florence Jordans name on the application that she believed the Jordan

18

bull

family had some interest in the disputed property She therefore put Florence Jordan as

the owner to facilitate water connection to the church

[84] The Respondents evidence was that she is one of the daughters of Leon Jordan She

produced copies of notice to quit by solicitors for Florence Jordan wife of Leon Jordan

and Letters of Administration in her fathers estate No 2032002 given under the hand of

the Registrar on 29th December 2002 bearing Deputy Registrars stamp 28th October 2009

description of property 4000 sq ft of land with building at Chateaubelair Leon Jordan was

related to Lucy Jordan (he said sister the Respondent said aunt)

[85] I accept from the evidence that the heirs of Lucy Jordan include Delores Jordan the

Respondent and Administrator of the Estate of Leon Jordan When Letters of

Administration are issued they are accepted as conclusive evidence of the title of the

administrator as personal representative of the deceased (unless there is a revocation)

Tristam and Cootes Probate Practice 25th edition at p 6 Effect of Probate or Letters of

Administration Similarly (executors title) A grant of letters of administration is

accepted in all such courts as conclusive evidence of the title of the administrator as

personal representative of the deceased

STATUTORY DECLARATION AFFIDAVITS OF PERSONS DECEASED

[86] Leon Jordan (for the Respondent) swore a statutory declaration Saville Cummings (for

the Respondent) and Roseclair Roberts (for the Applicant) swore affidavits They have

since passed to the great beyond I bear in mind that they were not available for crossshy

examination I have not made any use of Saville Cummings evidence I have made

limited use of what Leon Jordan and Roberts have swom in those documents

[87J Leon Jordans declaration is in accord with the Applicants evidence that the disputed land

was in the possession of Lucy Jordan prior to Cummings taking charge of it

19

bull middot bull

OSTENSIBLE OR APPARENT AUTHORITY

[88] Counsel submitted that Pastor Works had ostensible or apparent authority to act for the

Applicant when he made enquiries regarding the purchase of the disputed property In

view of the decision I shall be making I do not think it necessary for me to comment

CONCLUSION

[89] Lucy Jordan was the accepted possessory owner of the disputed property until she died in

1956 Cummings took over Lucy Jordans affairs and was the caretaker of the disputed

property until she died on 29th October 1997 In 1977 Cummings permitted the Applicant

to renovate and occupy the disputed property for the purpose of worship

[90] There was no arrangement for the payment of rent when that arrangement was made

The Applicant with Cummings consent renovated the dilapidated building and occupied it

until the present date As the Applicant occupied the disputed property with the consent

of Cummings acting for the owner time cannot run in favour of the Applicant so as to

permit the Applicant to obtain aprescriptive twelve year title under the Limitation Act

[91] During the occupation of the disputed property Cummings made a change to the

arrangement originally made with Marshall on behalf of the Applicant Cummings

requested the Applicant to pay the property tax through her The Applicant complied with

her request and every year gave her the money to pay the tax That act of paying the tax

through her is equivalent to paying rent for the disputed property By that method of

payment of tax through her Cummings maintained right to possession of the disputed

property on behalf of the owner In that circumstance time does not run against the owner

of the disputed property

[92] When the permission granted by Cummings to the Applicant became inoperative on her

death in 1997 time began to run in favour of the Applicant The Respondent instituted

legal proceedings against the Applicant but discontinued those proceedings Time

continued to run in favour of the Applicant

20

bull

[93J The Applicant filed an application for a declaration of possessory title on 1st September

2009 Twelve years from 30th October 1997 (Cummings date of death is 29th October

1997) would be 29th October 2009 The Applicant is fifty-nine days short of the twelve

year statutory period required for adeclaration of possessory title

[94] The Applicant has not established twelve years adverse possession of the disputed

property The declaration for possessory title cannot be granted

[95] Order

(1 ) The Applicants application for adeclaration of possessory title fails

(2) The Respondent is entitled to adeclaration of possessory title

(3) Costs of $300000 to be paid by the Applicant

(4) Liberty to apply in Chambers on 27th July 2011

~Monic ep High Court Ju e (Acting) 17th July 2011

21

opposed by respondent Delores Jordan (Administratrix of the estate of Leon Jordan

deceased) who filed an entry of appearance on 7th October 2009

[3] In accordance with section 7 of the Act the Respondent filed an opposing claim on 2nd

November 2009 Affidavits in support of the opposing claim were filed on 9th March 2009

by Delores Jordan Wonetha Jordan Andrew Cummings (who gave oral testimony) and

Savillie Cummings (deceased)

THE DISPUTED LAND

[4J During cross examination of Andrew Cummings it was suggested that the Respondent

was claiming a different parcel of land or a parcel of land differently described I accept

the disputed property (3715 sq ft) at Chateaubelair as published on the North by an

allotment road on the North-east by an existing road and West by a road leading to

Leeward Highway on the South by lot Number 20 on Plan D62

[5] On this property stands a building which is occupied by the Seventh Day Adventist Church

As I understand Selwyn Jones an elder of the Church the local community Church has

certain responsibilities but when property is acquired by the church it is owned by the

Incorporated Trustees of the Seventh Day Adventist Church in St Vincent (Applicant)

WRITTEN SUBMISSIONSmiddot 30th June 2011

Documents Related to the Disputed Land

[6] The under-mentioned documents were put in evidence by the Respondent

1 A statutory declaration No 31912000 filed on 2nd November 2009 - Leon Jordan

declared that for the past forty-two years he had been in possession of the

disputed land from the death of his sister Rosa Jordan the owner of the land who

died on 29th April 1956 Rosa Jordan is Leons aunt

(2) Letters of Administration No 2032002 of 29th December 2002 granted to Delores

Jordan Daughter and Administratrix in the estate of Leon Jordan

2












CASE FOR APPLICANT











3

CASE FOR RESPONDENT







Leon Jordan















4











her or anyone else






occupation











5





























6
























intention

7

bull












dilapidated






agreed






woodwork




8















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21












CASE FOR APPLICANT











3

CASE FOR RESPONDENT







Leon Jordan















4











her or anyone else






occupation











5





























6
























intention

7

bull












dilapidated






agreed






woodwork




8















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

CASE FOR RESPONDENT







Leon Jordan















4











her or anyone else






occupation











5





























6
























intention

7

bull












dilapidated






agreed






woodwork




8















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21











her or anyone else






occupation











5





























6
























intention

7

bull












dilapidated






agreed






woodwork




8















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21





























6
























intention

7

bull












dilapidated






agreed






woodwork




8















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21
























intention

7

bull












dilapidated






agreed






woodwork




8















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull












dilapidated






agreed






woodwork




8















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21















Payment of Taxes







9



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21



















10

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull







cannot be adverse

Water connection








11























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21























1997





12

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull




















13

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull




















14

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

Adverse Possession













DISTURBANCE








McIntosh


15


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21


SUIT NO 184 OF 2007


























16

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull



















17

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

~














the land













18

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull

























19

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull middot bull





CONCLUSION






















20

bull







[95] Order






21

bull







[95] Order






21

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH …...been discussed in cases: Tootsie Persaud Ltd....

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Transcript of THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH …...been discussed in cases: Tootsie Persaud Ltd....